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The Nagoor Durga, Represented by Its Managing Trustees Sultan Kalifa Sahib and anr. Vs. S. Kasinatha Iyer and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1943Mad562; (1943)1MLJ431
AppellantThe Nagoor Durga, Represented by Its Managing Trustees Sultan Kalifa Sahib and anr.
RespondentS. Kasinatha Iyer and ors.
Cases ReferredArunachalam v. Seetharam
Excerpt:
- - subramania iyer and dharmi ammal and all the respondents are precisely on the same footing......sale in the b schedule. the four items in the a schedule were in the possession of a woman named dharmi ammal as alienee from mahadeva iyer. the items of the b schedule were owned by a number of respondents.3. the decision of the sub-collector of negapatam was that as dharmi ammal was an agriculturist and as she had paid the rent due on those items of property which were her holding at that time, items 3, 8, 9 and 11 of a schedule were exempt and that nothing further was due from those properties towards the decree debt. there was, however, a decree against the present respondents for the full amount still due under the original decree of 1928 and for the sale of their holdings for the realisation of that amount. there were then two appeals by the six respondents, three in each appeal,.....
Judgment:

King, J.

1. The subject-matter of this appeal is the right to execute a decree granted in favour of the appellant in 1928. This decree was in a suit to recover arrears of rent due upon a holding under the Madras Estates Land Act. Before the decree was passed part of the holding had been sold by the original ryot, P. G. Subramania Ayyar, to A. Mahadeva Iyer and when the suit was decreed a joint decree was given against these two persons. There was of course a charge given over the property comprised in the original holding of Subramania Ayyar and as part of that holding had been alienated to Mahadeva Iyer, the items of the charged property were enumerated in two schedules, Schedule A dealing with the property then held by Mahadeva Iyer and Schedule B property held by Subramania Ayyar. There was also a direction that execution should be taken first against the property in Schedule A.

2. Various execution petitions were filed and various items of property in Schedule A were in fact sold. Then came the final execution application from which this appeal arises. By that time there were only items 3, 8, 9 and 11 still unsold in A Schedule and there were items 1 to 6 and 8 to 14 still available for sale in the B Schedule. The four items in the A Schedule were in the possession of a woman named Dharmi Ammal as alienee from Mahadeva Iyer. The items of the B Schedule were owned by a number of respondents.

3. The decision of the Sub-Collector of Negapatam was that as Dharmi Ammal was an agriculturist and as she had paid the rent due on those items of property which were her holding at that time, items 3, 8, 9 and 11 of A Schedule were exempt and that nothing further was due from those properties towards the decree debt. There was, however, a decree against the present respondents for the full amount still due under the original decree of 1928 and for the sale of their holdings for the realisation of that amount. There were then two appeals by the six respondents, three in each appeal, to the learned District Judge of East Tanjore. The learned Judge held that the original decree which was charged upon both A and B Schedules should now be split into two and that only one half of the decree amount should be regarded as charged upon the A Schedule and only one half upon the B Schedule. The appellant had not contested the decision of the Sub-Collector that Dharmi Animal's property was now exempt and that so far as the A Schedule was concerned no further property could be brought to sale. In the result, the learned District Judge gave a decree for one half of the amount claimed against the properties in the B Schedule held by the seven respondents. He also with the consent of the advocate for the decree-holder apportioned amongst these seven defendants the amount of this half decree which was still due according to his findings. This is now a second appeal by the appellant against six of the seven respondents, omitting the seventh respondent whose separate holding amounts to only three cents and from whom a sum of Rs. 3-0-3 was declared due by the learned District Judge.

4. The main point which it seems necessary to decide in this appeal is whether the provisions of the Madras Agriculturists' Relief Act (IV of 1938) in any way prevents the decree-holder, from proceeding against the properties now in the hands of the six respondents for the full amount of the decree debt still due to him.

5. It is argued for the appellant--and against this argument there is no answer--that the original decree was granted jointly against two defendants and that there was a charge created over the items of property in both A schedule and B schedule and there seems no justification whatever for the learned District Judge holding that this charge could be split up into two halves, one falling upon the A schedule and one falling upon the B schedule. However, if Section 15 of the Madras Act IV of 1938 can be held to apply to the facts in this case, it may be argued that one half of the arrears of rent for which the appellant obtained his decree has, in fact, been discharged by payments made under that section. The question then arises whether Section 15 can apply to the facts of the present case. It seems to me quite clear that it cannot. It must be mentioned at this stage that the original holding held by Subramania Iyer before 1928 has long since ceased to exist. It has been split up into a number of holdings and the appellant himself has recognised these holdings and their tenants and is accepting rent from them on the basis of the new holdings. It seems to me on these facts that it is quite impossible for any person to pay any rent for the original holding of Subramania Iyer as rent due for faslis 1346 and 1347. It is only if rent is paid for these faslis and paid in time that any claim can be made under Act IV of 1938 for the wiping off of arrears of rent for the previous faslis. As I now hold that such payment is impossible it seems to me beyond all doubt that in the peculiar circumstances of this case no advantage whatever can legally or logically be taken of Section 15. As a matter of fact however Section 15 has been applied by the learned Sub-Collector and it is because of Section 15 that he held that Dharmi Ammal's properties were no longer liable. The appellant was content with that decision, and when the appeals came before the learned District Judge he did not attempt to have it set aside. The present respondents are all held to be either non-agriculturists or agriculturists who have not proved to the satisfaction of the Court that they have paid rent in respect of their separate holdings for faslis 1346 and 1347 in time. In effect, therefore, the appellant is now proceeding against persons who in any case can take no direct advantage of Section 15 of the Act. There seems therefore no reason prima facie why as against these respondents the appellant should not have a decree for the full amount which he now claims.

6. It was argued however on behalf of the respondents that the principle enunciated by this Court in Arunachalam v. Seetharam (1941) 1 M.L.J. 561 : I.L.R. (1941) Mad. 930 will apply to the present case and that inasmuch as Dharmi Animal has been held entitled to take advantage of Section 15 of the Act then that advantage will accrue for the benefit of all the respondents Arunachalam v. Seetharam (1941) 1 M.L.J. 561 : I.L.R. (1941) Mad. 930 was a very different type of case. It was a case of a mortgage debt which at the instance of the mortgagor had been scaled down and this Court held that when such a debt had once been scaled down any property which was security for that debt could not be sold for anything more than the scaled down mortgage money, no matter whether that property was in the possession of a non-agriculturist or not. These facts are not reproduced here. There is no scaling down here at the instance of the original holder of the holding. Subramania Iyer and Dharmi Ammal and all the respondents are precisely on the same footing. None of them can be approximated to the position of a mortgagor and none of them separately to the position of a purchaser of the equity of redemption . It seems to me that the principle in Arunachalam v. Seetharam (1941) 1 M.L.J. 561 : I.L.R. (1941) Mad. 930 cannot therefore, be applied to the present case.

7. It has been argued further on behalf of the respondents that a decree for the full amount said to be due under the original decree of 1928 cannot be granted because if it is granted they have no right of contribution against the other holders such as Dharmi Ammal, and that it is because of the appellant's conduct that they have no such right of contribution against them. They .attack the appellant's conduct in not filing a memorandum of cross-objections before the learned District Judge against the finding of the Sub-Collector that Dharmi Animal's properties were exempt from all. further liability. It seems to me that this question of the right of contribution will still be open to the respondents in case this appeal is allowed. It is argued that they cannot meet a plea of res judicata on the part of such defendants as Dharmi Ammal. But I am unable to see any matter which is res judicata in this litigation. The Sub-Collector no doubt held that Dharmi Ammal was not liable and the properties which she possessed were not liable to be sold. But, at the same time, he also held that in spite of that fact a decree could be given against these respondents for the full amounts still due. There was, therefore, no enunciation of any principle by the first court that this liability could be split between Dharmi Ammal and the other respondents, so that the other respondents would be liable only for what remained after Dharmi Ammal's liability had been considered. There seems also in this suit no direct contest of any kind between Dharmi Ammal and the present respondents. In these circumstances, I am unable to see that the question of any possible right of contribution in favour of the respondents has been decided in this litigation and I cannot therefore hold that this question presents any obstacle to the granting of a decree in favour of the appellant such as he now seeks against the respondents.

8. In the result, therefore, this appeal must be allowed and a decree granted to the appellant against the six respondents for double the amount awarded by the learned District Judge. I have already mentioned that the appellant's learned advocate in the District Court had no objection to the apportioning as between these respondents of the liability. That apportioning has been done in the schedule attached to the judgment. In the result, therefore, the amount found due by the learned District Judge from each of the six respondents who are respondents to this appeal will now be doubled. The appellant will be entitled to his costs throughout from the respondents. The memoranda of cross objections will be dismissed with costs.

9. Leave is refused.


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